Justice Department Asking for Clemency Petitions for CARES Act Recipients Updated 9/26

Several CARES Act recipients and their loved ones have reached out to our office indicating that they or their loved ones have been encouraged to fill out a clemency petition.  In order to understand what this means and what you or your loved one should do if they are asked to fill out a petition we need to break it down.  

What is the CARES Act?

In March of 2020, in response to the growing threat of COVID-19 in the Federal Prisons, Congress passed and the president signed the CARES Act into law.  Among other things, the CARES Act allows individuals who are vulnerable to COVID-19 to spend more time on home confinement than normally available; under normal circumstances a person could only spend 6 months or 10 percent of their sentence on home confinement.  Under the CARES Act they can spend the rest of their sentence under home confinement.  

Individuals who get home confinement under the CARES Act must be approved by the Bureau of Prisons.  That approval process includes a review of their underlying crime to verify that the crime was nonviolent; a review of their risk of reoffending and a review of the time left on their sentence to verify that they have served half of their time.  

Individuals who are on CARES Act relief must submit to strict supervision.  This supervision can include electronic monitoring and call-in’s to the court probation officer.  There is little to no room for error as there are several documented cases of individuals who have been sent back to prison for failing to call in and failure to abide by all technical rules of their CARES Act relief.  

At the end of the Trump administration, members of the Justice Department wrote a memorandum indicating that they believe that individuals on CARES Act relief are required to go back to prison at the end of the pandemic.  The Biden administration’s Department of Justice affirmed that this was a legally correct strategy.

Drug Offenders Receive Requests for Clemency

This week we got calls from Individuals who are on CARES Act relief are indicating they are being asked by their counselors to submit clemency petitions within the next five or ten business days.  

From Politico: 

Those who have been asked for the applications fall into a specific category: drug offenders released to home under the pandemic relief bill known as the CARES Act with four years or less on their sentences. Neither the White House nor the Department of Justice clarified how many individuals have been asked for commutation applications or whether it would be expanding the universe of those it reached out to beyond that subset. But it did confirm that the president was beginning to take action.

Politico, Biden starts clemency process for inmates released due to Covid conditions

More Questions Than Answers

This proclamation leaves us with more questions than answers, including the following:

Are drug cases the only cases being considered for clemency?  And if so, how did the administration come to that conclusion? 

• There are many other types of cases that were eligible for CARES Act relief, originally speaking.  What about wire fraud, home health care embezzlement or tax evasion cases? 
• Will this be similar to President Obama’s Clemency considerations of 2015-16 that focused on low level drug offenders?  

Where do these sit in the order among the already filed clemency petitions? 

• When President Biden took office, the Hill reported that there were 15000 outstanding clemency petitions “on the President’s desk,” including clemency petitions from the Obama and Trump administrations. 
• Which ones get considered first?  Earlier in the year, news stories indicated that President Biden was considering “flexing his clemency powers” before the end of the first year of his term.  Is that still the plan? 
• How do these new clemency petitions fit into that?  

What level of urgency should a CARES Act recipient feel at this point?  Do these requests mean that the Justice Department is considering winding down the CARES Act? 

• At the time of this blog, the Delta variant is still causing much sickness and the idea of herd immunity seems farther away than it has ever been.  At the same time, the cases in the prisons seem to be dropping.  
• The “covered emergency period” that allows inmates to serve their sentence outside the walls of the prison is somewhat tied to the National Emergency.  This means if the emergency was declared over, the inmates would have to return to prison no more than 30 days later. 
• Does the Bureau of Prisons believe that they can safely manage the pandemic inside the prisons? 
• Is the Bureau of Prisons considering removing the covered emergency period so that they can order the incarcerated persons back to prison? 
• At what point does seeking compassionate release come into play? 
• If a person is being handed a clemency petition to fill out then what should they do with their 2255 or other litigation that may be pending?  

Clearly there are more questions than answers at this point and CARES act recipients do not have much time to make some very important decisions.  

Update September 26, 2021: Pardon Attorney Releases Info on the "Biden Home Confinement Expedited Screening"

The Pardon Attorney's Frequently Asked Questions Page Includes a new question and answer regarding the "Biden Home Confinement Screening" Program: 

A portion further down the page concerning the Biden Home Confinement Expedited Screening On Individuals on Compassionate Release was also added:

These were added, to the best of our knowledge, on September 24, 2021.  From this we can see the following:

1. The White House still believes that clemency is the only answer.  Rather than rescinding the previous Office of Legal Counsel memorandum or just saying "nah, we're good" to any notion that the incarcerated persons would be going back to prison, the White House is asking CARES Act individuals to submit these clemency petitions.  They may also see a failure to act from congress as an indicator as well.  
2. The White House is only considering this for drug cases at the moment. We would submit that there are just as many if not more nonviolent tax evaders that are out on CARES Act relief.  We hope that they will be given equal consideration soon.  
3. Compassionate Release is not a deal breaker.  While we would normally indicate that a person seeking clemency should not engage in any more litigation, that does not currently apply to individuals who are either filing or waiting on a ruling.  

We received contacts from people who were told by their counselors or case mangers to fill out an application and get it back to them within 5 business days. If you meet the criteria and were not contacted then you would be wise to fill out the clemency petition here and write on there that you are subject to expedited screening or otherwise reach to your liaison at the BOP.  

Details of a CARES Act Clemency Case

Because a CARES Act recipient may only have days to submit a clemency they may not have sufficient time to do everything that our office would do when we are seeking a commutation.  But there are some things that you can do to have as good of a chance as possible to seek relief:

Consider Taking As Much Responsibility as Possible

Question 5 of the standard Pardon Petition asks the applicant to provide a detailed account of the offense including the extent of [the applicant’s] involvement.  An applicant that uses this area to say that they are either innocent, pled guilty under duress or otherwise shirks responsibility may be less likely to receive clemency. 

The pardon attorney’s website indicates that the applicant’s “candor” is an important consideration.  Note the same justice department that houses the United States Attorney’s offices (the prosecutors) also houses the Pardon Attorney.  This means they have the ability to share resources and information including police reports, the pre-sentence investigation report and various other things that could rebut your potential denial of wrongdoing. 

Put Particular Focus on Rehabilitation

Question 7 of the Pardon Petition asks the applicant to state their reasons for seeing commutation of sentence.  

This is a crucial question for the clemency petition.  Applicants should treat this portion of the pardon application as their personal chance to make their case to the pardon attorney.  We often ask “what would you want the pardon attorney to know” when incarcerated persons or their loved ones reach out to our office; this is where to tell it.  

Give specific information about your rehabilitation and what you learned.  Not just that you answered the phone every time it rang for your check in.  Everyone had to do that.  What did you learn in your computer class or your rehabilitation programs that is going to help you keep from reoffending?  What is different now from when you were incarcerated?  You want them to know this crucial piece of information.   

Consider Supplementing Your Petition with Letters of Support 

Under normal circumstances, our office would supplement a pardon petition with letters of support from family, friends and mentors.  We would also include certificates, the incarcerated person’s class transcript, medical records and many other things in order to give the best chance at success for clemency. 

In this case, there simply isn’t enough time here.  We suggest that you turn in your clemency petition on time without any problems or delays and then ask you counselor or case manager if you can supplement your petition with additional letters of support and other information.  

While we believe that the President can actually keep these individuals on home confinement for as long as necessary to finish their sentences, we are glad that the President is considering clemency for some individuals on CARES Act relief.  If you have received a clemency petition then please fill it out, accepting as much responsibility as you can and explaining how you can do better once you are released.  Send it to the appropriate person and ask if you can supplement it later.